SpendMap User Guide (v14.5)

OVERVIEW

This On-Demand Software Access Agreement (the “Agreement”) constitutes the mutual agreement of Palmas Development Corporation and the Customer governing the use and access by Customer of the SpendMap Licensed Materials (as described below). Pricing and other information concerning the On-Demand Solution is set forth in the purchase agreement between Palmas Development Corporation and Customer (“Purchase Agreement”), a copy of which is attached hereto as Schedule “A”.

 

GRANT OF LICENSE AND ACCESS

 

Subject to the terms and conditions of this Agreement, Palmas Development Corporation hereby grants to Customer through Designated Users (as defined below) a non-transferable license for the non-exclusive right to access and use the PURCHASING plus+ or SpendMap computer software program (“PURCHASING plus+” or “SpendMap”), as specified in the Purchase Agreement, by means of a public or private network on a server controlled by Palmas Development Corporation at the premises of a third party provider of hosting services (the “On-Demand Solution”), the accompanying online help system ("Help System")and all related materials delivered with this Agreement or hereafter provided to Customer by Palmas Development Corporation. The SpendMap or PURCHASING plus+ software program, the Help System, and all related materials are herein collectively referred to as “SpendMap Licensed Materials”.

 

TERM

 

The term of this Agreement (“Term”) shall commence upon the date that the Purchase Agreement is signed by Customer (the “Effective Date”). The initial Term shall be for one (1) year commencing on the Effective Date. On or before the expiry of the first anniversary of the Effective Date, Customer may elect in writing to extend the Term for an additional one (1) year at the then current renewal rate. If Customer fails to make such election, and in any event upon the termination of the second anniversary of the Effective Date, the Term shall continue on a month to month basis at the then current monthly rate. Once the Term is continuing on a month to month basis, either party shall have the right to terminate the Agreement on two (2) months prior written notice.

 

FEES

 

Customer agrees to pay all fees payable hereunder or pursuant to the Purchase Agreement on the terms as described in the Purchase Agreement set out in Schedule “A”.

 

RESTRICTIONS ON USE

 

Pursuant to this Agreement, only Customer or its Designated Users shall be entitled to use the copies of the SpendMap Licensed Materials delivered or made available to Customer by Palmas Development Corporation, and such use is limited to use during the Term for Customer’s internal business purposes. Customer agrees that the number of users permitted by it to use or access the SpendMap Licensed Materials will not exceed the maximum number of users set forth in the Purchase Agreement. Customer's rights to the use of SpendMap Licensed Materials and any and all warranties of Palmas Development Corporation shall commence on the Effective Date and shall terminate on the expiry of the Term. To protect the proprietary rights of Palmas Development Corporation to SpendMap Licensed Materials, Customer agrees to comply with the requirements for the use of SpendMap Licensed Materials as set forth in this Agreement.

 

PROPRIETARY RIGHTS OF PALMAS DEVELOPMENT CORPORATION

 

Customer acknowledges that SpendMap Licensed Materials are subject to the proprietary rights of Palmas Development Corporation. Customer agrees that the ideas and expressions contained in the SpendMap Licensed Materials are trade secrets of Palmas Development Corporation, are protected by civil and criminal law, and by the law of copyright, and are very valuable to Palmas Development Corporation and that their use and disclosure must be carefully and continuously controlled. Customer further understands that the Help System and other product documentation are subject to the Copyright laws of Canada and by international copyright laws. Palmas Development Corporation retains all title and ownership and reserves all rights, including copyrights, trademarks, patents and other proprietary rights and interest, in and with respect to SpendMap Licensed Materials furnished pursuant to this Agreement, subject only to Customer's non-exclusive right to use thereof as defined in this Agreement. Customer shall keep each and every item to which Palmas Development Corporation retains title free and clear from all claims, liens and encumbrances except those of Palmas Development Corporation, and any act of Customer, whether voluntary or involuntary, purporting to create a claim, lien or encumbrance on any such items in favor of anyone other than Palmas Development Corporation shall be void.

 

UNAUTHORIZED ACTS

 

Nothing in this Agreement shall be construed as a grant to Customer of any rights other than those expressly set forth in this Agreement. Customer shall use its best effort and take all reasonable steps to protect SpendMap Licensed Materials from unauthorized possession, use or knowledge of any items supplied under this Agreement. Customer shall notify Palmas Development Corporation immediately of any such unauthorized possession, use or knowledge. Customer will promptly furnish full details of such possession, use or knowledge to Palmas Development Corporation, will assist in preventing the recurrence of such possession, use or knowledge, and will cooperate with Palmas Development Corporation in any litigation against third parties deemed necessary by Palmas Development Corporation to protect its proprietary rights, such litigation to be at the expense of Palmas Development Corporation. Customer's compliance with this paragraph shall not be construed in any way as a waiver of any rights which Palmas Development Corporation may have to recover damages or obtain other relief against Customer for its negligence or intentional harm to Palmas Development Corporation's proprietary rights, or for breach of contractual rights.

 

COPIES OF SPENDMAP LICENSED MATERIALS

 

Unless prior written consent is provided by Palmas Development Corporation, Customer may not make any copies of SpendMap Licensed Materials other than for backup and disaster recovery purposes. Customer must reproduce and include Palmas Development Corporation's copyright notice on each such copy. Except as expressly provided in this paragraph, during such period that Customer has possession or custody of any portion of SpendMap Licensed Materials, Customer shall not copy, duplicate, attempt to create, attempt by reverse engineering or otherwise to create, decompile, re-write, or disassemble, SpendMap Licensed Materials, or any portion thereof, from SpendMap Licensed Materials or any part thereof, or other information in whatever form, made available pursuant to the terms of this Agreement. Customer shall not allow anyone else to copy, duplicate, attempt to create, attempt by reverse engineering or otherwise to create, decompile, re-write, or disassemble, SpendMap Licensed Materials, or any portion thereof, from SpendMap Licensed Materials or any part thereof, or other information in whatever form, made available pursuant to the terms of this Agreement. Customer agrees not to interfere in any manner with the On-Demand Solution.

 

REQUIRED HARDWARE AND SOFTWARE

 

Customer acknowledges that the use of the SpendMap computer software program requires that Customer obtain and install additional required software programs and computer hardware and equipment (including, without limitation, such programs, hardware and equipment required for maintaining connectivity to the On-Demand Solution)(the “Required Hardware and Software”), as detailed in Palmas Development Corporation's technical requirements documentation, which Palmas Development Corporation has made available to Customer and which may be revised from time to time at Palmas Development Corporation's sole discretion. Customer agrees that the acquisition of the Required Hardware and Software shall be at Customer’s sole cost and that the cost thereof is not included in the fees set out in this Agreement or the Purchase Agreement. Customer further acknowledges that the operation of the SpendMap computer software program requires the Required Hardware and Software to be of sufficient quality, condition and repair, and Customer agrees to maintain the Required Hardware and Software in the appropriate quality, condition and repair at its sole cost and expense.

 

LIMITED WARRANTY

 

ALL APPLICATION SOFTWARE IS INHERENTLY COMPLEX AND IT IS RECOMMENDED THAT CUSTOMER VERIFY THE RESULTS AND ACCURACY OF INFORMATION PRODUCED BY USING THE SPENDMAP SOFTWARE.

 

THE SPENDMAP LICENSED MATERIALS ARE SOLD, LICENSED OR MADE AVAILABLE “AS IS”, WITHOUT WARRANTY AS TO THEIR PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF SPENDMAP LICENSED MATERIALS IS ASSUMED BY CUSTOMER.

 

PALMAS DEVELOPMENT CORPORATION DOES NOT WARRANT THAT ON-DEMAND SOLUTION WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE OR VIRUS FREE NOR SHALL IT HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS OR TIMELINESS OF INFORMATION ENTERED BY CUSTOMER’S DESIGNATED USERS WHILE ACCESSING OR USING THE ON-DEMAND SOLUTION OR FOR ANY ACTIONS TAKEN BY CUSTOMER IN RELIANCE UPON SUCH INFORMATION.

 

CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR THE SELECTION AND USE OF ANY OTHER PROGRAMS, EQUIPMENT OR SERVICES USED DIRECTLY OR INDIRECTLY IN CONJUNCTION WITH SPENDMAP LICENSED MATERIALS, AS WELL AS FOR THE RESULTS OBTAINED THEREFROM.

 

For the duration of the Term, Palmas Development Corporation warrants to Customer that the SpendMap computer software program made available by means of the On-Demand Solution and when operated in conjunction with the Required Hardware and Software, will substantially conform to the documentation (subject to errors and omissions) described in Schedule “C”. Palmas Development Corporation's sole obligation under this warranty shall be to make commercially reasonable efforts, during the Term, to remedy defects. Customer recognizes that there may be errors which are not reproducible at the facilities of Palmas Development Corporation. Customer agrees that “commercially reasonable efforts” to remedy defects does not include an obligation on Palmas Development Corporation to conduct site visits to Customer's facility.

 

Palmas Development Corporation does not warrant:  (i) that the SpendMap computer software program is error-free or that the operation of the SpendMap computer software program will always be error-free or uninterrupted; (ii) that all programming errors can be found or be corrected; or (iii) that Palmas Development Corporation will be able to retrieve any lost or damaged data. Palmas Development Corporation's warranty to Customer does not extend to:  (i) upgrades, enhancements, modifications or changes made by Customer or any person other than Palmas Development Corporation or its authorized agents; (ii) the resolution of problems caused by an upgrade, enhancement modification or change made or performed by Customer or by any person other than Palmas Development Corporation or its authorized agents, or otherwise caused by an act or omission of Customer or of any other person other than Palmas Development Corporation or its authorized agents; (iii) the resolution of problems caused by the use of the SpendMap computer software program on computer systems that do not contain the Required Hardware and Software; (iv) the resolution of problems caused by the manner in which Customer's Required Hardware and Software is installed; (v) the unavailability of or latencies attributed to the Internet or other telecommunications infrastructure not caused by Palmas Development Corporation; (vi) the interoperability of the On-Demand Solution with any third party system; or (vii) the resolution of problems which are not reproducible at the facilities of Palmas Development Corporation. If Palmas Development Corporation provides Customer with services in respect to a problem that turns out to have been caused by:  (i) an upgrade, enhancement, modification or change made or performed by Customer or by any other person other than Palmas Development Corporation or its authorized agents or otherwise to have been caused by an act or omission of Customer or of any other person other than Palmas Development Corporation or its authorized agents; (ii) problems caused by the use of the SpendMap computer software program on computer systems that do not contain the Required Hardware and Software; or (iii) problems caused by the manner in which Customer's Required Hardware and Software is installed, then Customer will pay Palmas Development Corporation for the work done by it in respect of that problem based on its standard time and materials charges then in effect.

 

In the event of a breach by Palmas Development Corporation of any warranty hereunder, Palmas Development Corporation's entire liability and Customer's exclusive remedy shall be the correction or repair of those elements of SpendMap Licensed Materials not meeting Palmas Development Corporation's limited warranty. In the event that Palmas Development Corporation is notified of a defect in an element of the SpendMap computer software program and such defect can be reproduced in the facilities of Palmas Development Corporation, if Palmas Development Corporation cannot within a reasonable amount of time remedy such defect, and if, as a result, the defective element does not substantially conform to the documentation (subject to errors and omissions) described in Schedule “C”, then Customer may choose to terminate this Agreement for that defective element of the SpendMap computer software program only. Upon Palmas Development Corporation receiving written notice of such termination, (i) in the event that such notice is received within thirty (30) days of the Effective Date, Palmas Development Corporation shall reimburse Customer for that portion of the hosting fees paid to Palmas Development Corporation in relation to such defective element; or, (ii) at any other time, Palmas Development Corporation will adjust the amount of the on-going monthly hosting fee to reflect the fact that access to the defective element is not being provided.

 

NEGATION OF ALL OTHER WARRANTIES; LIMITATION OF LIABILITY

 

PALMAS DEVELOPMENT CORPORATION MAKES NO WARRANTY TO ANY THIRD PARTY WITH RESPECT TO SPENDMAP LICENSED MATERIALS AND CUSTOMER SHALL BE SOLELY RESPONSIBLE THEREFOR.

 

EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, PALMAS DEVELOPMENT CORPORATION MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED.

 

NEITHER PALMAS DEVELOPMENT CORPORATION NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DELIVERY, INSTALLATION, TRAINING, SUPPORT OR ANY OTHER ACTIVITY OR PRODUCT RELATED TO SPENDMAP LICENSED MATERIALS, OR ANY PORTION THEREOF, SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY DAMAGES RELATED TO THE CORRUPTION OR LOSS OF DATA, OR FOR ANY LOSSES OR INJURIES ARISING OUT OF THE USE, THE RESULTS OF THE USE, OR AN INABILITY TO USE SPENDMAP LICENSED MATERIALS, EVEN IF PALMAS DEVELOPMENT CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.

 

APPLICABLE LAW MAY IMPLY WARRANTIES THAT CANNOT BE EXCLUDED OR CAN BE EXCLUDED ONLY TO A LIMITED EXTENT. THIS AGREEMENT SHALL BE READ AND CONSTRUED SUBJECT TO SUCH LAWS.

 

NEW VERSIONS OF SPENDMAP LICENSED MATERIALS

 

Palmas Development Corporation may release new versions of SpendMap Licensed Materials from time to time at its sole discretion. All new versions and releases of SpendMap Licensed Materials will be made available pursuant to the SpendMap Maintenance Agreement (described on the Purchase Agreement) and Customer is obligated to use such new versions and releases.  Palmas Development Corporation reserves the right to make modifications to SpendMap Licensed Materials without notice, so long as any such modifications shall continue to perform in accordance with the specifications set out in Schedule “C” hereto.

 

SERVICE LEVEL AGREEMENT

 
The parties agree to the terms of the service level agreement set forth in Schedule “D”.

 

Designated Users and Security

 

For the purposes of this Agreement a “Designated User” is a person authorized by Customer to access and use the On-Demand Solution. Each Designated User will be assigned a unique Designated User identification name and password for access to and use of the On-Demand Solution (“Designated User ID”). A Designated User ID allows the Designated User to access or use the applicable On-Demand Solution and to enter, change or delete data entered by Designated Users while accessing or using the On-Demand Solution (“Customer Information”). Customer shall be responsible for ensuring the security and confidentiality of all Designated User ID’s. The On-Demand Solution shall be used only by Designated Users. Customer acknowledges that it will be fully responsible for all liabilities incurred through use of any Designated User ID (whether lawful or unlawful) and that any transactions completed under a Designated User ID will be deemed to have been lawfully completed by Customer. The parties acknowledge that all publicly-available networks are inherently insecure. Palmas Development Corporation will implement and deploy reasonable security features, procedures and technologies that will, in Palmas Development Corporation’s reasonable judgment, provide sufficient protection for Customer Information and other data hosted in connection with the On-Demand Solution from unauthorized access.

 

Customer Information

 

Customer and its Designated Users will be solely responsible for providing all Customer Information. Customer hereby grants to Palmas Development Corporation all necessary licenses in and to any intellectual property rights embodied in such Customer Information necessary for Palmas Development Corporation to fulfill its obligations to Customer under this Agreement. Palmas Development Corporation will use Customer Information only to the extent necessary to perform its obligations under this Agreement and as permitted hereunder; provide maintenance, administration, monitoring and capacity planning of the On-Demand Solution; or to fulfill authorized requests from Customer. Customer shall not, and shall not permit any Designated User to, provide Customer Information that: (A) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation, or is defamatory, harmful to minors, obscene or child pornographic; (B) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or (C) is materially false or misleading. Palmas Development Corporation may take remedial action if Customer Information violates this Section; provided, however, Palmas Development Corporation is under no obligation to review Customer Information for accuracy or potential liability.

 

CONFIDENTIALITY AND PRIVACY

 

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information shall include Customer Information; Palmas Development Corporation’s Confidential Information shall include the SpendMap Licensed Materials provided hereunder; and Confidential Information of each party shall include, without limitation, the terms and conditions of this Agreement and all related Purchase Agreements, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

 

Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

 

Without limiting the above, Palmas Development Corporation shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Information. Palmas Development Corporation shall not (a) modify Customer Information, (b) disclose Customer Information except as compelled by law in accordance with the provisions hereof or as expressly permitted in writing by Customer, or (c) access Customer Information except to provide services hereunder and as otherwise contemplated in this Agreement or prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.

 

The parties agree to comply with all applicable privacy laws applicable to personal information that may be contained in Customer Information. Customer agrees to obtain from the relevant individuals any consents required to the utilization of such information in connection with the On-Demand Solution. Nothing herein restricts the right of Palmas Development Corporation to use such information in order to provide services to the Customer and other customers including the use of Customer Information in an aggregated manner which respects privacy obligations.

 

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

 

ASSIGNMENT

 

Except as may be expressly set forth in this Agreement, Customer's rights hereunder to use SpendMap Licensed Materials, or any portion thereof, may not be assigned, sub-licensed or transferred to a successor, affiliate, or any other person, firm, corporation, or organization, voluntarily, by operation of law, or in any other manner without the prior written consent of Palmas Development Corporation. For greater certainty, Palmas Development Corporation hereby consents to the sub-licensing of SpendMap Licensed Materials by Customer to any of the parties listed on Schedule “B” hereto; provided that such assignment is not effective until such parties agree in writing to be bound to the terms of this Agreement as though they were parties hereto and provided that Customer may at no time sub-license if such proposed sub-licensing would result in the SpendMap computer software program being in use by more than the number of users licensed by Customer  as set out in Schedule “A” hereto. Any attempted assignment by Customer of any of its rights, duties and obligations pursuant to this Agreement without the consent of Palmas Development Corporation shall be void. Customer's rights and obligations under this Agreement shall inure to and be binding upon any successor in interest to substantially all of the assets of Customer.

 

COMPETITIVE USE

 

Customer agrees that during the term of this Agreement, Customer shall not, directly or indirectly, develop for or lease, license or sell to a third party not listed on Schedule “B” hereto, or negotiate to contract to develop for or lease, license or sell to third party not listed on Schedule “B” hereto, any software similar to that supplied under this Agreement, but this paragraph shall not be construed to prohibit Customer from acquiring for its own use software from third parties or from developing its own software for its own use or for lease, license or sale to any of the parties listed on Schedule “B” hereto provided that the Licensed Materials are not used in such activities.

 

TERMINATION

 

Should Customer attempt to use, copy, sub-license, or convey SpendMap Licensed Materials, or any portion thereof, in a manner contrary to the terms of this Agreement or in competition with Palmas Development Corporation or in derogation of Palmas Development Corporation's proprietary rights, whether such rights are explicitly stated in this Agreement, granted by operation of law, or otherwise, this Agreement and the term of the license granted hereunder shall be terminated and Customer shall return to Palmas Development Corporation all copies of SpendMap Licensed Materials and all related materials in its possession. This Agreement shall also terminate if Customer breaches any provision of this Agreement, including for greater certainty, by failing to make a payment of license fees when due or by using the SpendMap computer software program by more than the licensed number of users set out in the Purchase Agreement, provided, however, that if in the opinion of Palmas Development Corporation such breach was inadvertent, Palmas Development Corporation may first give Customer notice of such breach and Customer shall thereupon have ten (10) business days from the delivery of such notice to remedy the default. Palmas Development Corporation shall also have the right to suspend the provision of the rights and services granted hereunder in the event of any breach by the Customer of the terms of this Agreement that continue for more than thirty (30) days after notice of such breach is given to the Customer. Palmas Development Corporation shall have, in addition to any other remedies available to it, the right to equitable relief, Customer hereby acknowledges that other remedies are inadequate. Upon termination or expiry of this Agreement, Customer shall return or, if permitted by Palmas Development Corporation, destroy all copies of SpendMap Licensed Materials in Customer's possession, including, for greater certainty, all original software media and all media containing copies of the SpendMap computer software program, all copies of other materials relating to the SpendMap Licensed Materials. Upon request of Customer made within thirty (30) days after the termination or expiry of this Agreement, Palmas Development Corporation will make available a copy of all Client Information available to it in connection with the On-Demand Solution in a comma separated format (CSV). After such thirty (30) day period, Palmas Development Corporation shall have no obligation to maintain or provide any Client Information and shall thereafter, unless legally prohibited, and subject to its data retention policies, delete all Client Information in its possession or control.

 

NOTICES

 

Unless otherwise specified, each notice to a party must be given in writing and delivered personally or by courier or transmitted by fax or by e-mail to the parties as follows:

 

or to any other address, fax number, e-mail address or other person that the party designates in writing. Any notice, (A) if given personally or by courier will be deemed to have been given when actually received, (B) if transmitted by fax or e-mail before 3:00 p.m. (local time) on a business day, will be deemed to have been given on the business day and (C) if transmitted by fax or e-mail after 3:00 p.m. (local time) on a business day or on a day that is not a business day, will be deemed to have been given on the following business day.

 

 

GENERAL

 

1.Customer agrees that this Agreement shall be binding upon Customer, its employees, agents, representatives and persons associated with it, their personal representatives, heirs, successors in interest and assigns.

 

2.This Agreement will be governed, construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. The parties hereby irrevocably and unconditionally attorn to the non exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals therefrom.

 

3.This Agreement may not be amended, modified, superseded or canceled, nor may any of the terms, covenants, representations, warranties or conditions thereof be waived, except in writing between Customer and Palmas Development Corporation. No waiver by either party of any condition, or of any breach of any term, covenant, representation, or warranty contained herein, in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or waiver of any other condition or of any breach or any other term, covenant, representation or warranty.

 

4.The captions and headings contained herein are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.

 

5.This Agreement, including the Purchase Agreement attached hereto as Schedule “A” and the other Schedules attached hereto, constitute the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior agreements, arrangements, and understandings related to such subject matter.

 

6.The parties agree that time shall be of the essence in all respects of this Agreement.

 

7.SHOULD ANY PROVISION HEREOF BE HELD ILLEGAL OR NON-ENFORCEABLE TO ANY EXTENT BY A COURT OF COMPETENT JURISDICTION, SUCH PROVISION SHALL BE DEEMED SEVERABLE FROM THIS LICENSE AGREEMENT AND SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ALL OTHER PROVISIONS OF THIS LICENSE AGREEMENT. CUSTOMER HEREBY ACKNOWLEDGES THAT EVERY LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED TO BE SEVERABLE AND INDEPENDENT OF ANY SUCH OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.

 

8.Customer acknowledges that title to copyright of all barcode printing and displaying technology provided in the SpendMap computer software program is owned and shall remain with TAL Technologies Inc. and that title to copyright of the fax creation and transmission technology provided in the SpendMap computer software program is owned by and shall remain with Data Techniques Inc. and that title to copyright of the JPEG decoding/decompression software technology provided in the SpendMap computer software program is owned by and shall remain with Black Ice Software, LLC and that title to copyright of the PDF file creation technology provided in the SpendMap computer software program is owned by and shall remain with Amyuni Technologies and that title to copyright of the balance of the technology provided in the SpendMap computer software program is owned by and shall remain with 1606902 Ontario Incorporated or their respective copyright holder. Palmas Development Corporation represents that, under License Agreements with the above listed copyright holders, it is duly licensed and has full and absolute right, by virtue of such licenses, to enter into and to carry out the terms of this License Agreement.

Web-based Calendar Control

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Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
 
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Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

9.Customer acknowledges that any violation of the rights of Palmas Development Corporation under this Agreement will cause Palmas Development Corporation immediate and irreparable harm. Therefore, upon any actual or impending violation of this Agreement, Palmas Development Corporation shall be entitled to the issuance of a restraining order, preliminary and permanent injunction without bond, restraining or enjoining such violation by Customer, its successors or assigns or any entity or person acting in concert with Customer. Such remedy shall be additional to and not in limitation of any other remedy which may otherwise be available to Palmas Development Corporation.

 

10.Except for obligations to make payment, neither party shall be liable for any failure to perform or delay in performing any obligation under this Agreement if such failure is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, government action, riot, insurrection, damage, destructibility component or materials shortage (each a “Force Majeure Event”), or any other cause beyond the reasonable control of such party.

 

11.This Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same instrument.

 

12.Surviving Provisions. The following provisions: Term, Fees, Restrictions on Use, Proprietary Rights of Palmas Development Corporation, Unauthorized Act, Copies of SpendMap Licensed Materials, Limited Warranty, Negation of All Other Warranties; Limitation of Liability, Designated Users and Security, Customer Information, Confidentiality and Privacy, Assignment, Competitive Use, Termination, Notices and General shall survive any termination or expiration of this Agreement.

 

13.Canadian Sales. If Customer purchased SpendMap Licensed Materials in Canada, Customer agrees to the following:
The parties hereto confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including Notices, have been and shall be drawn up in the English language only.
Les parties aux présentes confirment leur volonté que cette convention, ainsi que tous les documents, s'yrattachant, y compris tout avis, soient rédigés uniquement en anglais.

 

 

 
 

Schedule “A”

[Purchase Agreement]

 

•Purchase Agreement bearing Customer’s signature.

Schedule “B”

[List of permitted sub-licensees]

 

 

•None.

Schedule “C”

[Specifications of SpendMap]

 

•SpendMap on-line help system.

•Any other miscellaneous related support documentation.

 

Schedule “D”

[SERVICE LEVEL AGREEMENT]

 

1.Service Interruption.  At times, actions or inactions caused by third parties can produce situations in which access to, or use of, the On-Demand Solution may be impaired or disrupted. Although Palmas Development Corporation will use commercially reasonable efforts to take any actions it deems appropriate to remedy and avoid such events, Palmas Development Corporation cannot, and does not, guarantee that they will not occur.

 

2.Service Levels:  The Service Levels below apply only to the On-Demand Solution described in the Purchase Agreement.

 

a.Availability.  Palmas Development Corporation will maintain an Availability Percentage (as defined below) of no less than ninety-nine and one half percent (99.5%) in each calendar month with respect to the On-Demand Solution.

 

i.Definitions:  “Availability Percentage” means the following fraction expressed as a percentage:

 

Maximum Uptime – Unscheduled Downtime

Maximum Uptime

 

“Maximum Uptime” means the applicable calendar month in its entirety (i.e., 24 hours per day, seven days per week), minus Scheduled Maintenance.

 

“Scheduled Maintenance” means (a) the aggregate time during which the On-Demand Solution is scheduled to be down for maintenance as further described in the “Scheduled Maintenance” section below and (b) the aggregate time during which Palmas Development Corporation carries out emergency maintenance of the On-Demand Solution, which maintenance is not necessitated by any breach on Palmas Development Corporation’s part of any provisions of this Agreement, provided that (x) such emergency maintenance shall not exceed more than two (2) hours in a given month, (y) Palmas Development Corporation shall notify Customer immediately upon determining that it will undertake such maintenance, and shall use reasonable efforts to ensure minimum disruption to Customer as a result of such emergency maintenance.

 

“Unscheduled Downtime” means the total time, starting from the time that Palmas Development Corporation is made aware of the outage, other than Scheduled Maintenance, during which the functionality of the On-Demand Solution is unavailable to Customer; excluding any service unavailability to the extent caused by:  (i) Customer, Designated Users or agents of Customer, (ii) any event classified as a Force Majeure Event (as described in the Agreement), (iii) Customer’s inability to access the On-Demand Solution due to a network or other connectivity problem, or (iv) events covered by the limited warranty set forth in the Agreement or in a Maintenance Agreement.

 

ii.Service Levels and Service Credits:  Should the Availability Percentage for a calendar month be less than ninety-nine and one half percent (99.5%) then Customer shall have the right to claim service credits (each a “Service Credit” and, collectively, the “Service Credits”) as follows:

 

 
(“Hosting Fees” means the fees designated as Hosting Fees in the Purchase Agreement.)

 

The foregoing does not include, under any circumstances Required Hardware and Software, Customer provided equipment, any network or equipment outside of the equipment and systems within the control of Palmas Development Corporation as indicated in the demarcation diagram attached hereto as Appendix A TO Schedule “D”. All claims for Service Credits must be made in writing within 60 days of the last day of the applicable month. In no event shall Service Credit exceed 100% of the Hosting Fees of a given month

 

b.Scheduled Maintenance.  Palmas Development Corporation will make reasonable efforts to perform Scheduled Maintenance outside of Customer’s regular business hours, at a mutually convenient time for both parties. Palmas Development Corporation will use reasonable efforts to notify Customer of any outages or any major upgrades at least ten (10) days in advance.

 

Backup Retention and Disaster Recovery. Customer Information will be copied onto backup media daily and, subject to Section 1 above, will be retained for at least thirty (30) days in a secure location. The ability to recover archived Customer Information will be tested by Palmas Development Corporation every six months. Palmas Development Corporation will, at all times, maintain the ability to commence a full restore of the On-Demand Solution (including the applicable Customer Information) within two hours of commencing Palmas Development Corporation’s disaster recovery plan.

 

Appendix A TO Schedule “D”

[Demarcation Diagram]